Nissar v. Toronto Transit Commission,

• Jurisdiction: Ontario
• Judge: Blair, Rouleau and Tulloch, JJ.A.
• Neutral Citation: 2013 ONCA 361
• Citation: 2013 ONCA 361,(2013), 309 O.A.C. 8 (CA),115 OR (3d) 713,[2013] OJ No 2553 (QL),[2013] O.J. No 2553 (QL),309 OAC 8,115 O.R. (3d) 713,(2013), 309 OAC 8 (CA),309 O.A.C. 8
• Date: 22 November 2012
• Court: Court of Appeal (Ontario)

Nissar v. TTC (2013), 309 O.A.C. 8 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.003

Rabeka Nissar (appellant) v. The Toronto Transit Commission (respondent)

(C55342; 2013 ONCA 361)

Indexed As: Nissar v. Toronto Transit Commission

Ontario Court of Appeal

Blair, Rouleau and Tulloch, JJ.A.

June 4, 2013.

Summary:

On March 1, 2001, Nissar sued for damages suffered in a 1999 accident involving a Toronto Transit Commission (TTC) bus and another vehicle. Nissar was a passenger on the bus. The matter was struck off the trial list by a judge in April 2005. Nissar moved to restore the action to the trial list.

The Ontario Superior Court dismissed the motion. Nissar appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - On March 1, 2001, Nissar sued for damages suffered in a 1999 accident involving a Toronto Transit Commission (TTC) bus and another vehicle - Nissar was a passenger on the bus - The matter was struck off the trial list by a judge in April 2005 - Nissar moved to restore the action to the trial list - The motion judge dismissed the motion - Nissar appealed - The Ontario Court of Appeal dismissed the appeal - The applicable test was conjunctive: the plaintiff bore the burden of demonstrating that there was an acceptable explanation for the delay in the litigation and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice - The conduct of Nissar's first and second lawyers delayed any real progress in this action (i.e., failing to answer undertakings, failing to order transcripts) - With respect to the issue of prejudice, the motion judge found real and actual non-compensable prejudice - It would be unfair to force TTC to deal with this matter after such inordinate delay and on such an incomplete record.

Cases Noticed:

Ruggiero v. FN Corp. et al., [2011] O.T.C. Uned. 3212; 2011 ONSC 3212 (Master), refd to. [para. 19].

Armstrong v. McCall et al. (2006), 213 O.A.C. 229; 28 C.P.C.(6th) 12 (C.A.), refd to. [para. 20].

Faris v. Eftimovski et al. (2013), 306 O.A.C. 264; 2013 ONCA 360, folld. [para. 23].

Williams v. John Doe et al., [2012] O.T.C. Uned. 2514; 2012 ONSC 2514 (Master), refd to. [para. 28].

1351428 Ontario Ltd. et al. v. 1037598 Ontario Ltd. et al., [2011] O.T.C. Uned. 4767; 2011 ONSC 4767, refd to. [para. 28].

1196158 Ontario Inc. v. 6274013 Canada Ltd. et al. (2012), 295 O.A.C. 244; 12 O.R.(3d) 67; 2012 ONCA 544, refd to. [para. 29].

Wellwood v. Ontario Provincial Police et al. (2010), 262 O.A.C. 349; 102 O.R.(3d) 555; 2010 ONCA 386, refd to. [para. 30].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 38].

Chang, Re - see Mendlowitz & Associates Inc. et al. v. Chiang et al.

Mendlowitz & Associates Inc. et al. v. Chiang et al. (2009), 257 O.A.C. 64; 93 O.R.(3d) 483; 2009 ONCA 3, refd to. [para. 39].

Authors and Works Noticed:

Archibald, Todd, Killeen, Gordon, and Morton, James C., Ontario Superior Court Practice (2011), p. 1205 [para. 26].

Counsel:

William G. Scott, for the appellant, Rebeka Nissar;

Norma Priday, for the respondent, Toronto Transit Commission.

This appeal was heard on November 22, 2012, by Blair, Rouleau and Tulloch, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Tulloch, J.A., on June 4, 2013.